Have the lawyers defending Mississippi’s anti-LGBTQ bill actually read their own statute?

This question loomed large over hearings here on Monday at the 5th Circuit U.S. Court of Appeals. Civil rights attorneys challenging the Mississippi statute, HB 1523, argue that it promotes certain religious beliefs over others and legalizes discrimination against LGBTQ people. That reading would seem to be reasonable, since the bill explicitly states that anti-gay and anti-trans beliefs receive special legal protection, and allows anti-LGBTQ discrimination in employment, housing, medical treatment, public accommodations, adoption, and marriage licensing. But when Roberta Kaplan, a Paul, Weiss attorney arguing against the law, raised this point in court, her opponent, Jonathan Mitchell, contested it.

“This statute has been mischaracterized so many times,” Mitchell told the court with a weary sigh. He insisted that a public school teacher who promotes anti-gay beliefs in a second-grade classroom could be re-assigned under HB 1523. Judge Catharina Haynes, one of the 5th Circuit’s sharpest judges, looked puzzled.

“Why?” she asked. After all, the law bars the government from taking any “adverse employment action” against state employees for promoting anti-LGBTQ beliefs. Mitchell responded that the school could create a “neutral policy” barring schoolteachers from espousing political views in school. But that would not solve the problem at all. Even if a school passed such a policy, it would be barred under HB 1523 for punishing a teacher who violated it so long as they did so by endorsing anti-LGBTQ views. The text of the law is absolute: There are no exceptions and no balancing of interests.

Here is a more interesting exchange:

Haynes raised another concern: that HB 1523 allows restaurants to eject same-sex couples. Mitchell responded that serving these couples wouldn’t constitute a “recognition” of their marriage under the law.
“What about a rehearsal dinner for a same-sex couple?” Haynes asked. Mitchell scoffed.

A rehearsal dinner? At a restaurant?” he responded incredulously. Yes, Haynes said, informing Mitchell, perhaps for the first time in his life, that not all couples conduct rehearsal dinners in swanky hotel ballrooms. Mitchell hedged, equivocated, and dodged, informing Haynes that the court had to “defer to the state’s reasonable construction.”

Before we continue, a brief word about this line of argument. Federal courts are, indeed, required to defer to a state’s interpretation of its statutes. But the state’s attorneys aren’t the ones who do the interpreting. It’s the state’s courts. If a state court rules that HB 1523 doesn’t allow discrimination, the federal courts must rely upon that interpretation. But if a state’s lawyer says so on the fly with absolutely no evidence or legal authority, the federal courts owe him no deference. Haynes pointed this out to Mitchell, reminding him, “Your interpretation of the law is not binding on a judge. A judge isn’t bound by what you told me.” Mitchell responded with the most jarring line of the day, telling Haynes that if a state judge interprets HB 1523 incorrectly, he should be “impeached.” Judge Jennifer Walker Elrod leaned forward with a shocked expression. “If a judge interprets something incorrectly,” she asked with evident alarm, “we should impeach them?”

Mitchell broke into a laugh, realizing how badly he had erred. “No!” he said. “Not you!” Then he reiterated his main point: HB 1523 is not “a license to discriminate.”

The religious right, while being successful in getting the public to vote the way they want or getting lawmakers to create certain bills, have failed time and time again to get the courts to ratify their mess with a favorable ruling.

And why is that? Simply because, to paraphrase the words of David Boies, the attorney who successfully argued against Prop 8, the courts are places of logic. You can't sway judges with lies, junk science, or anecdotal horror stories like you can with the public. You can't work with judges like you can with politicians. Judges aren't your friends or allies. You can't make public appearances with them or give them cheesy awards praising their "values."

Judges are supposed to uphold the Constitution and impartially rule for fairness. And in cases such as with sodomy laws, gay adoption, and even marriage equality, the best lies of the religious right fell because they didn't pass the muster of truth.

And in the end, that line, however seemingly thin, may continue to be strong enough to hold the religious right at bay.

Alex Jones: In fact, let me say this right now. Let me tell -- I’m not against gay people. OK. I love them, they’re great folks. But Schiff looks like the archetypal cocksucker with those little deer-in-the-headlight eyes and all his stuff. And there’s something about this fairy, hopping around, bossing everybody around, trying to intimidate people like me and you, I want to tell Congressman Schiff and all the rest of them, “Hey listen asshole, quit saying Roger and I” -- and I’ve never used cussing in 22 years but the gloves are off -- “listen you son of a bitch, what the fuck’s your problem? You want to sit here and say that I’m a goddamn, fucking Russian. You get in my face with that I’ll beat your goddamn ass, you son of a bitch. You piece of shit. You fucking goddamn fucker. Listen fuckhead, you have fucking crossed a line. Get that through your goddamn fucking head. Stop pushing your shit. You’re the people that have fucked this country over and gangraped the shit out of it and lost an election. So stop shooting your mouth off claiming I’m the enemy. You got that you goddamn son of a bitch? Fill your hand.” I’m sorry, but I’m done. You start calling me a foreign agent, those are fucking fighting words. Excuse me.

Trump’s Expected Pick To Lead The Army Sponsored Anti-LGBTQ Bill In Tennessee - Trump's expected pick for Army secretary led an effort to stamp out equality in Tennessee. That's in contrast to the last person to lead the Army, an openly gay man. Stop blaming those who voted for Trump before some of you ask yourselves did you believe that crap fed to you about Clinton. Or did you vote at all?

About Me

Alvin McEwen is 46-year-old African-American gay man who resides in Columbia, SC.
McEwen's blog, Holy Bullies and Headless Monsters, and writings have been mentioned by Americablog.com, Goodasyou.org, People for the American Way, PageOneQ.com, The Washington Post, Raw Story, The Advocate, Media Matters for America, Crooksandliars.com, Thinkprogress.org, Andrew Sullivan's Daily Dish, Melissa Harris-Perry, The Last Word with Lawrence O'Donnell, Newsweek, The Daily Beast, The Washington Blade, and Foxnews.com.
In addition, he is also a past contributor to Pam's House Blend,Justice For All, LGBTQ Nation, and Alternet.org. He is a present contributor to the Daily Kos and the Huffington Post,
He is the 2007 recipient of the Harriet Daniels Hancock Volunteer of the Year Award and the 2010 recipient of the Order of the Pink Palmetto from the SC Pride Movement as well as the 2009 recipient of the Audre Lorde/James Baldwin Civil Rights Activist Award from SC Black Pride. In addition, he is a three-time nominee of the Ed Madden Media Advocacy Award from SC Pride.